2021 Is Over, It's Time To Change Course
Michael Lodge, NCPM, CRTP - A large ocean liner was headed across the Atlantic from Portsmouth to New York. As it neared its destination at night, a lookout on the wing of the bridge reported, "Light, bearing on the starboard bow." "Is it steady or moving astern?" the captain called out. The lookout replied, 'Steady, captain,' which meant that they were on a collision course. The captain then called to the signalman, "signal that ship: We are on a collision course, advise you change course 20 degrees." Back came a signal, "Advisable for you to change course, 20 degrees." The captain said, "Send, I'm a captain, change course 20 degrees." "I'm a seaman, second class," came the reply. "You had better change course 20 degrees." By that time the captain was furious. He spat out, "send, this is the mighty ocean liner, HMS Franconia. Change course 20 degrees." Back came the flashing light, "this is a lighthouse, suggest you change course 20 degrees."
2021, we had people telling us what to do, especially in government. Covid vaccines have failed. Masks have failed. The economy has gone into an inflationary range that has created financial stress on families. We had education telling parents they were wrong in getting involved in their children's education. We had businesses that became politically involved in political agendas that harmed their business, stock holders, and employees. Basically, if we look at everything that has happened in 2021 we have been going the wrong course. We have had people shout at us to change our course or else, when they are wrong in shutting down the independence of people. We kept shouting back ag them, you turn course, we are humans, Americans, and we know a better way, we can think for ourselves.
2022 is a year to change course. Let's focus on our own personal and family issues that can strengthen our lives. Let's focus on our communities and how we can get involved and create change. Let's use our vote in 2022 to move people out of government that should not be there. Let's get rid of any debt we have and focus on becoming financially strong. Let's stay out of courts and use mediation services to resolve conflict. We have so much that we can do to make our lives richer and fulfilling. Change to a nation starts in our communities by getting involved.
This new year provides us with a lot of possibilities, lets seize the year and take control. Let's change course.
Michael Loge, NCPM, CRTP - At some point in time all of us get into a dispute or conflict of some kind. Many of these issues will have to be resolved and many of you will think you need to end up in court. However, you have an alternative to court and that is through mediation. Let's go through what mediation is and how it can help you.
WHAT IS MEDIATION?
One often hears the term "mediation" in connection with resolution of disputes which have already become lawsuits, and, occasionally, before those lawsuits are filed. Mediation is a process by which a neutral third party called a Mediator hears a dispute between two or more parties and attempts to help the parties settle their dispute without judging the merits of the case. The term "mediation" is often confused with the term "arbitration." Arbitration is another form of dispute resolution by a third party (as opposed to a trial before a judge or jury). The Arbitrator listens to the evidence presented by each party and then makes a judgment as to who is responsible for the claimant's damages, and how much the responsible person must pay to the claimant, if any payment is due.
WHO CAN MEDIATE A CASE?
Mediators range in training from practicing attorneys, retired judges or other professionals to highly trained mediators who work full or part time in the specialized field of mediation. The right mediator for your case is one who demonstrates overriding neutrality in evaluating and resolving your case. The effective mediator will help the parties recognize the strengths and weaknesses of both sides' case, so that at the end of mediation both parties are reasonably satisfied with the outcome. The effective mediator will also help parties consider the risks and costs of resolving a dispute before a judge or jury, without necessarily meeting the expectations of either party.
MEDIATE, OR LITIGATE?
Ninety-five percent of cases filed in the California court system settle before trial. Some settle early, others settle on the eve of trial or as close as after a jury is picked. The difference between the former and the latter is the amount of money and time a party will spend in getting from one point to the other. Depending on the type of case, the cost could range from hundreds to several thousands of dollars. Often, the costs are not recovered at the time of settlement. Thus both parties bear their own burden of costs.
Mediating a case before a lawsuit is filed enables the parties to present their case to a mutually selected neutral person (or in some cases two persons as co-mediators) before any money is spent on litigation. Many times the simple process of telling one's story to a neutral willing to listen will take the parties a long way toward settlement. The cost of mediating a case (which can be as little as a few hundred dollars, or as much as several thousand dollars per day) is minimal compared to the costs incurred through the life of a lawsuit.
WILL THE COURT MAKE ME MEDIATE?
In some cases, contracts between the parties require that a case be mediated and/or arbitrated. This is often occurs in medical malpractice actions, construction contracts, and real estate purchase agreement. In some cases statutes require pre-litigation mediation or alternative dispute resolution, such as in most types of homeowners association disputes. The excessive backlog in court calendars makes mediation an attractive alternative in other types of cases, resulting in the resolution of disputes in a timely manner, and avoiding the painstaking experience of costly litigation lasting up to five years.
HOW DO I START THE MEDIATION PROCESS?
If you have a dispute with another person or business, which you want resolved, you can first propose to the other side to mediate the case. If you are uncomfortable with that option, then you can make the first call to the mediator and ask the mediator to approach the other side with the invitation to mediate. A well-trained mediator can effectively maintain his or her neutrality during this process.
If you are not familiar with any mediators, you can call the local court and ask for potential mediators, or you can call your local bar association which often has a panel of mediators. Other possible sources are the Internet, as well as private mediation companies.
Select a mediator who has some familiarity with the area of law of your dispute (i.e., homeowners associations, landlord/tenant, business practices, construction disputes, family law, etc.) and someone in your geographic area. Ask the mediator what his or her fees are, and how much time he or she will allocate to your dispute. A good mediator will commit as much time as is necessary to help you resolve your dispute.
WHAT IF MEDIATION DOES NOT SETTLE MY CASE?
In most states, what takes place in mediation is confidential. For example, in California, the mediator cannot be forced to testify at trial as to what was said in a mediation hearing. Any offers made during the mediation process, and any concessions made, are confidential if the case doesn't settle. Of course, certain limitations do exist in connection with protecting others from danger or imminent harm, or in connection with illegal activities. But, parties to most typical disputes over money or negligent conduct are generally protected by laws of confidentiality.
WHAT IS THE SECRET TO A SUCCESSFUL MEDIATION?
The mediation process is as successful as the willingness of the parties to participate in good faith to reach a settlement. A good mediator will work with the parties until he or she determines that a settlement cannot be reached at the time. Parties who consider what they have learned during the mediation process often reach a settlement after the hearing in order to avoid spending precious time and additional funds which may never be recovered at trial.
Written by: Adrienne L. Krikorian / Mediate.com
Michael Lodge, NCPM, CRTP - In mediation there are a lot of views brought to the table that need to be addressed. And it is important to understand how your looking at the dispute in your own mind. www.lodge-co.com
This article was first published in the Oakland County Legal News on January 26, 2021. “You can’t always get what you want, but if you try sometimes, you get what you need.” The Rolling Stones, Let It Bleed, 1969
The success of a mediation lies in the willingness to collaborate. Understanding each other’s perspective, needs and interests is key. But how do you alter another person’s viewpoint when they appear glued to a particular stance or steadfastly cling to an opening number? How about when your own prior experiences with a party or their legal counsel lead you to distrust them? Sometimes, we need to reexamine long-held beliefs and hit the refresh button.
Preconceived notions and automatic associations are examples of cognitive bias and distortion. To effectively negotiate, we need to be aware of cognitive bias and distortion and how each adversely affects judgment and decision making.
Cognitive biases involve a tendency to be inclined in favor or against something. When they are at play, a person lacks a neutral viewpoint. Cognitive distortions are thinking errors. They can lead to inaccurate perceptions of reality and illogical inferences. Both are automatic and occur in everyone to some degree and both can result in irrational decisions. This article will address the ten most common cognitive biases and distortions that arise during mediation and will help you to understand and deal with them.
Why do Cognitive Biases and Distortions Occur?
Cognitive biases and distortions cause individuals to make erroneous assumptions, instinctively categorize people and things and rely on mental shortcuts when making decisions. When someone speaks in terms of what “should” be said or done, it is a clue that a cognitive bias or distortion is influencing their perspective. They may mistakenly believe their feelings about a situation are a reliable indicator of reality.
In mediation, the deleterious effects of cognitive biases and distortions can be minimized by identifying the specific bias or distortion, explaining how it impacts judgment and encouraging thoughtful and thorough consideration of a range of options.
Anchoring bias occurs when individuals over rely on the first piece of information they receive. This information becomes a reference point, or anchor, which affects subsequent judgments and decisions. A fact or figure becomes anchored in the mind.
When negotiating a monetary settlement, what is considered reasonable can be greatly influenced by the first offer. Whoever makes that first offer generally has an advantage because anchoring bias essentially causes the parties to place excess weight on the initial offer during subsequent negotiations. The first offer acts as an anchor establishing the range of acceptable counteroffers.
Anchoring bias also impacts non-monetary negotiations. For instance, in the case of personal injury, anchoring can influence decisions about the amount of psychological services to which an individual is entitled to address emotional distress. In the criminal law context, an original excessive charge may persuade a defendant to accept a plea bargain to a charge much more serious than a probable jury verdict because of the anchoring effect.
Anchoring bias can be diminished by suggesting consideration of a range of possibilities rather than a fixed number or a specific solution. Mediators also can stimulate critical thinking and challenge the assumptions underlying the anchor. A useful exercise may involve writing down an original offer, followed by three or four potential alternatives.
Confirmation bias is the tendency to value and focus on ideas that affirm preexisting beliefs. This leads individuals to discount facts and reject information that contradicts their preconceptions. Like an echo chamber, confirmation bias reduces objectivity and reinforces preexisting beliefs.
People may become blinded to potential alternatives. For example, if the plaintiff demonizes the defendant and believes the defendant is untrustworthy, the plaintiff will look for and internalize information that confirms that negative view. Confirmation bias shapes not only how information is gathered, but also how it is interpreted and recalled. It can lead to faulty choices based on incomplete information.
In mediation of a guardianship matter, confirmation bias may influence a family member to become disenchanted with and overly critical of a guardian who has done something to upset them. They may search for evidence supporting their belief the guardian is doing a poor job and discount any evidence to the contrary. An isolated, negative experience may become magnified beyond what is warranted by the overall situation.
Confirmation bias can be countered by encouraging consideration of all relevant facts, not just those that confirm preexisting beliefs, and scrutinizing the accuracy of the memory of pivotal events. The mediator may ask a party to consider if any empirical evidence or principled basis exists for the other party’s perspective. The bias can be challenged by creating a chart listing the belief, the evidence supporting and refuting the belief and the probable outcome if the case proceeds to trial.
Labeling and Overgeneralization Distortions
Labeling is a cognitive distortion in which people reduce themselves or others to a single, typically negative, characteristic, like a “liar” or “cheat.” Rather than viewing the person’s behavior objectively, there is a tendency to globally label the person in a derogatory manner. As a result, any information that does not support the label is filtered out. Making a broad assumption about a person based on an isolated behavior or event, is almost always inaccurate.
Overgeneralization is a related cognitive distortion that involves drawing overbroad conclusions based on limited information. People may reach a conclusion based on one or two experiences, then see patterns where they do not exist and incorrectly draw sweeping conclusions about unrelated events.
In a mediation, a party may predict settlement will never occur because of a previous unsuccessful attempt to resolve a matter with the opposing party. They may unreasonably expect the unpleasant experience to occur repeatedly.
This distorted thinking can be addressed by asking a party to define the terms they are using and itemize the evidence that supports, as well as contradicts, their belief or prediction. Mediators can foster logical thinking by inquiring whether conclusions are based on a substantial amount of relevant data or merely one or two pieces of evidence. Mediators may want to gently raise the possibility that feelings, rather than logic, are guiding the party. Distinguishing between opinions and facts also can diminish the ramifications of this cognitive distortion.
When someone engages in labeling, one simple approach is to ask them to objectively describe the behavior. If they view the behavior as the problem, rather than the person, it becomes easier to discuss interests and concerns and reach a meaningful resolution.
Mediators can urge parties to assume good intentions and give the other party the benefit of the doubt. Remind the participants a first impression is merely an initial impression that is incomplete and often inaccurate. If they would like to test this theory, suggest they watch an episode of the “To Tell the Truth” game show and try to guess the correct contestant based on their first impression of the mystery guests.
Negativity bias is a tendency to focus on and remember negative rather than positive experiences. The human brain is naturally attuned to negativity and perceives adverse incidents as more influential than positive ones. Negativity bias can influence perception as well as memory. When a person concentrates on the potential downsides of a decision, they also tend to avoid risk.
Negativity bias has an evolutionary genesis. Humans are hardwired with a negativity bias based on our pre-historic ancestors who needed to be keenly aware of potential dangers to protect survival of the species. Neuroimaging research has demonstrated negative stimuli lead to a surge of electrical activity in certain areas of the brain. Negative events and experiences imprint more quickly and linger longer than positive ones according to Washington University professor and researcher Randy J. Larsen, Ph.D. Therefore, people are more likely to remember and dwell on an insult or unpleasant event than a compliment or a joyful event.
Because of the negative feedback instinct, there is a tendency to spot flaws first. In mediation, negativity bias may result in a perfectly reasonable offer being rejected summarily without careful consideration.
Negativity bias can be reduced by reflecting on good things that have occurred, listing approaches that have been successful, and considering the best-case scenario as well as the most realistic scenario. The mediator may encourage participants to focus on the positive features of a proposed settlement. Asking them to put themselves in the shoes of the other party also may promote a different perspective.
The reverse of negativity bias is optimism bias, also known as the illusion of invulnerability. Optimism bias causes individuals to overestimate the probability of a positive outcome and underestimate the risks. Unduly positive assumptions can lead to disastrous results. A related concept is the ostrich effect, which is the tendency to ignore apparent weaknesses.
In mediation, optimism bias may lead participants to believe their case is stronger and their chance of success at trial is greater than reality would suggest. Optimism bias can be curtailed by suggesting participants moderate optimism and proceed with caution to consider the strengths and weaknesses of their case, potential risks of proceeding forward and probability of a negative outcome.
In caucus, the mediator may ask the participants to consider the worst-case scenario. Creating a matrix, which sets forth the best, worse and most likely outcomes and the probabilities of each occurring, may be helpful. The mediator can guide them through realistic weighing of the evidence to reach a balanced and sensible decision.
Polarized Thinking Distortion
Polarized thinking, also known as dichotomous thinking, is a cognitive distortion in which people view things in two distinct categories rather than on a continuum. It involves all-or-nothing thinking, viewing things as black or white, good or bad, with no gray zone or middle ground. Thinking in the extremes does not promote compromise and is unrealistic because the truth generally lies somewhere between the two extremes. A sign of polarized thinking is the use of absolute words, such as “always”, “never”, “all”, and “nothing”.
Sometimes a fallacy of fairness is at play. An individual may believe life should be fair and when things do not work out the way they think is fair, they may become resentful. The assumption that life is fair is a fallacy not based on reality.
In mediation of a university dispute, a faculty member with dichotomous thinking, who has been denied tenure, may believe the only viable outcomes would be immediate granting of tenure or leaving academia entirely, not recognizing many alternatives exist between these extremes.
Polarized thinking can be ameliorated by consideration of objective evidence and other information that would support different conclusions. The mediator can stimulate conversation about exceptions and shades of gray. In caucus, the mediator can help individuals to expand their thinking and recognize a continuum by placing potential outcomes on a probability scale of 1 to 10. Alternatively, the mediator may suggest a break to evaluate a multitude of feasible options and reconsider crucial decisions.
Endowment Effect Bias
Endowment effect, also known as divestiture aversion, is the tendency for people to ascribe a higher value to something they own and expect more money to relinquish it than they would be willing to pay to acquire it. The mere fact of possessing an object can heighten perception of its value.
Loss aversion involves people being more interested in avoiding loss than in obtaining gains. The pain of losing is experienced more acutely than the pleasure of winning. People sometimes make flawed decisions based on an aversion toward loss.
In mediation of a partnership dissolution, a party may overestimate the value of their partnership share and discount the benefits of a proposed buyout. They may be more concerned about giving up rights or assets than they are interested in obtaining fair compensation.
The endowment effect may be reduced by asking a party to suppose the right or asset was on the market, to consider the factors an average person would find relevant in ascertaining its value and then determine the amount that average person would be willing to pay for it. Another approach would be to ask the party to imagine they were the other partner, what would they be willing to pay to acquire the partnership interest. Alternative views also may be fostered by asking the party to consider the consequences of adhering to the endowment effect.
Functional Fixedness Bias
The functional fixedness bias involves seeing or using an object or idea in only the way it is typically used. This bias can lead to being stuck and viewing a problem in one specific way. It impedes the ability to think “outside of the box” to find innovative solutions.
In mediation, a participant may become fixated on a precise remedy, rather than recognizing a variety of options may meet their underlying interest or concern. For example, in a special education dispute, the parent may believe individual speech therapy for one hour three times per week, which the school has previously provided to their child, is the only means of improving their child’s speech and language. Not recognizing that speech and language consultation to the teacher, a social skills group overseen by a social worker or speech therapist, paraprofessional support, and time in the general education classroom with peers may also contribute to reaching the desired goal.
Functional fixedness can be overcome by inviting participants to brainstorm a plethora of possibilities. Divergent thinking can be enhanced by asking participants to cite as many options as possible, without critique, prior to engaging in more convergent thinking to select acceptable solutions. A reluctant party may be asked to play Devil’s Advocate and challenge their adherence to one particular outcome. The mediator also may urge participants to genuinely listen to each other, be curious about other points of views, set aside preconceptions and suspend judgment before making a final decision.
Status Quo Bias
Status quo bias is the tendency to want things to stay relatively the same as they have always been, following the path of least resistance. People tend to prefer the familiar and often fear the unknown. Maintaining the status quo minimizes the risks and costs associated with change, but it also may result in people missing out on potential benefits that may outweigh the risks. Loss aversion is a primary reason underlying status quo bias.
Some people are overwhelmed by too many options and suffer from “choice overload.” This phenomenon can amplify the sense that change is complex and costly and should be avoided. In mediation, status quo bias may be at play if a party steadfastly insists on keeping things exactly as they are and resists any proposed change.
Status quo bias can be countered by helping a party to perform a realistic cost/benefit analysis of maintaining the status quo and making a change. A discussion of the pros and cons of staying on the same path or moving in a new direction may also be useful. The mediator could suggest they consider whether they would give the same advice to a good friend in their situation. The experience can also be normalized by acknowledging that everyone has biases that affect their decision making and can benefit from new experiences.
Sunk Cost Bias
Sunk cost bias, also known as escalation of commitment, involves continuing to do what an individual has been doing merely because they have invested time, resources or energy into it. For example, an individual might stay at a concert even when they are not enjoying the music because they paid a substantial amount for the ticket. A sunk cost is a cost that has already been paid for and cannot be recovered.
In mediation of an employment matter, an employee may demonstrate sunk cost by seeking reinstatement to their job, even though they dislike their work, simply because they have spent so much time at the job and with their co-workers they cannot see themselves in a different job.
Another example of sunk costs would be when a party resists settlement because they are upset about the amount of time, money and energy they have spent litigating the dispute and believe they must see it through until the end.
As with several other biases, loss aversion underlies this bias. Having strong emotional connections and a drive to preserve investments can lead to poor decisions not based on current realities.
Sunk cost bias can be diminished by pointing out that although time and money may have already been expended, where time and money is spent in the future is within their control. The mediator can encourage parties to consider the bigger picture, their ultimate goals and vision for the future. A bird’s eye view facilitates objective analysis of the case strengths and weaknesses and realistic assessment of the chance of success. It may be helpful to point out the ability to accept mistakes and learn from them is an important part of making better decisions in the future. While calling it quits can be painful, it frees up energy and resources to pursue new opportunities.
Mediators often employ the framing effect, which is a cognitive bias, to help parties draw more favorable conclusions from essentially the same information. Perception of a situation can be significantly influenced by how information is presented. Judgments and reactions can change depending on whether issues are framed in a positive or negative light.
Prior to mediation, while working with parties individually, the mediator can coach the parties to frame their concerns in a manner the other party is likely to hear. During the perspective sharing portion of mediation, the mediator can reframe caustic statements in more neutral and constructive terms to improve the other party’s understanding and receptivity to the underlying message. Reframing is also useful in converting deeply entrenched positions into underlying needs and interests.
When presenting a reasonable settlement offer, the mediator may wish to focus on what each party gains, rather than loses, to increase the participants’ receptivity to the offer. Because of loss aversion, a loss often is perceived as more significant, and worthy of avoiding, than an equivalent gain. Mediators can present an offer or proposal in a manner that makes it more attractive. For instance, with permission of the plaintiff, the mediator may take a proposal of $79,500, rather than $80,000, to the defendant to make the figure more palatable.
Word choice also impacts perception. A dispute may be reframed as an opportunity. A crisis may be viewed as a challenge. Even the pronoun selected can influence the listener’s experience and the outcome. Kenneth Cloke, a nationally recognized mediator, trainer and author has pointed out the pronoun “we” tends to foster collaboration and build consensus. The word “it” may facilitate problem solving because the participants can attack a thing rather than each other. Conversely, “they” may promote stereotyping and prejudice. “You” is more likely to result in accusations, denials and counter-attacks.
Professor Robert Cialdini has pointed out the choice of financial terms can shape how people perceive a situation. For instance, “purchase” or “investment,” which are associated with gain, are more likely to be receive a positive reception than “cost” or “price,” which are associated with loss.
Parties may also react to the context in which something is embedded, not just to the thing itself. A trial may seem distant and unlikely when the parties are engaged in early stage mediation, however, it looms large on the eve of trial and frequently involves much more than the parties anticipate. The mediator can help the parties and their legal counsel consider the demands of trial by discussing the realistic time, money, and energy that will be required.
Cognitive biases and distortions are automatic and universal. Mediators can help parties and their legal counsel to effectively and compassionately address cognitive biases and distortions that impede rational decision making. Recognizing the bias or distortion involved, understanding its impact and employing strategies to reduce its negative effects on negotiation can greatly enhance the resolution process and promote mutually satisfactory and enduring outcomes.
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Michael Lodge, NCPM, CRTP - Divorce mediation is really a very important step in creating a divorce and parenting agreement that is good for the family. It sets the rules from separation, divorce and the life after divorce. Remember, individuals divorce but families don't. After divorce you will still be responsible for these children you brought into the world and you will have to be co-parents. The better the parenting agreement the better the children will feel. The following article, taken from Mediate.com and written by Greg Enos has really laid out a good thought process for you to understand divorce mediation. Let's read. www.lodge-co.com
by Greg Enos, - Mediate.com December 2021: The decision to get divorced is often not an easy one. But what happens when you don’t want a full-blown series of court cases surrounding this experience? Rather than seeking divorce advice from your friends and a DIY solution, you can turn to mediation.
Mediation is a form of a divorce settlement that can work for you if you and your spouse are on terms good enough for open, if uncomfortable, communication. If you and your spouse are going through a divorce that is not friendly or amicable, mediation may not be the right option for - you. However, like with any other unfamiliar legal situation, you should do your own research before deciding whether or not mediation is something you are interested in.
Mediation can seem confusing at first, but we’re here to help you learn what it takes an educated decision about mediation and how to come prepared for your first session. Here’s what you need to know.
What is Divorce Mediation?
Divorce mediation is a form of settlement that is used by couples that are going through a divorce and want to decide how to divide their shared property, assets, and custody of their children. The goal of mediation is to reach a compromise between the two people getting divorced and to reach a decision that both parties can agree to.
Since mediation does not take place in court, it is possible to save a lot of the time, money, and frustration that comes with a court case. Mediation is a much more amicable form of divorce settlement than litigation.
What is the Difference Between Litigation and Mediation?
In litigation, a judge has the final say over every decision that is made. However, when it comes to mediation, there is not a judge directly involved. Therefore, in mediation, the final decisions are made between the two parties without a third party giving any sort of final say in the process. The mediator’s role is to guide the process and ensure that everything is legal, not to make decisions. Though mediation can be court-ordered, the mediation itself will not involve the judge.
If you and your spouse are unable to work together to come to decisions regarding the terms of the divorce, then you will need to go through the divorce litigation process in family court.
What is the Role of the Mediator?
The role of the mediator is to act as a neutral person between the two parties opposing each other during a divorce. The mediator does not always have to be a layer, but they should be very well-versed in divorce and family law. Using a divorce lawyer as a mediator can ensure that everything that happens in mediation sessions has legal precedent and would hold up in court if something were to happen down the line. In addition, the mediator should not be picking sides during the mediation process. They are there to ensure that each party is acting in a fair and reasonable manner.
Since mediators are a neutral party, both you and your spouse can ask them any questions that come up during the process. However, if the mediation is court-ordered, there is a chance that you will not be able to ask questions outside of the sessions. In that case, your lawyer should be able to answers any questions you have regarding the specifics of the mediation process.
You Need to Agree to Mediate
Mediation is one of the more amicable ways to go about a divorce. That doesn’t mean it’s going to be comfortable. Before you come to a mediation session, you must agree with your spouse that this is the path you want to take. It’s impossible to lay every issue out on the table if you can’t first agree to sit at that table together. In short, both you and your spouse must want to be involved in this process.
Be Prepared for the Mediation
Make sure that you come to every mediation session with all of the materials you will need for the session. If you are missing any important records, facts, or schedules, you will draw out the mediation unnecessarily. For example, if you know that your session is going to center around custody of your children, make sure that you bring a written out schedule of your children’s activities and have an idea of what you would like in terms of custody. Coming into the session with a plan of what you want to do will make the session easier to navigate. Make sure you also prepare beforehand for what you are willing to compromise on and what will be non-negotiable for you.
Being emotionally prepared for your meeting as well is important. You know that you are going to be discussing difficult topics, and if you do not acknowledge the tough feelings that you are facing, they have the potential to come out in unfriendly ways during the mediation. Make sure that you spend time processing your emotions surrounding the divorce in a healthy way so that you can have an open and honest line of communication during your mediation sessions.
One way to think of it is as though mediation is a business meeting. You wouldn’t show up to an important meeting empty-handed when you are supposed to be an active participant, and you wouldn’t be overly emotional about all the decisions made in the meeting. Try to separate your personal feelings from the situation in any way you can and focus on looking at the mediation as objectively as possible.
Be Prepared to Put Your Children First
After you agree to go through mediation with your divorce lawyer, it’s important that you put your children first. If you have kids, their interests come first in all decisions that you, as parents, make in mediation. From child custody to the living situation, your kids come before yourself. Fortunately, most couples who choose mediation come with this idea already in mind.
As mentioned in the preparation section above, making sure that you know your children’s schedules and normal day to day lives will help in making sure that during the divorce there is as little disruption as possible. Part of putting your children first is making sure that no matter how big of a change you are going through, you try to minimize the impact that it has on them.
Stay on Good Terms With Your Spouse
This can be one of the most challenging parts of the divorce process, especially if you’re still living in the same space. Whether you’re going through an uncontested divorce or not, staying on decent terms with your spouse can ultimately make the mediation process smoother and more efficient.
Set Goals for Your Mediation
While it’s important to come into mediation with a flexible mindset, it’s important to have at least a few goals in mind. Something like keeping your children in their current home could be a goal to aim for. When you and your spouse come into mediation with similar goals, it can help speed the process up.
This is especially important if you have a limited number of sessions, or if each of your sessions has a set time limit. If that is the case, make sure that each session has a specific goal that you want to achieve. Some examples could be to decide on a custody agreement in one session or decide where material assets will go.
No matter what path you take when it comes to your divorce proceedings, considering mediation as a part of that procedure can be helpful. Whether or not you can amicably discuss the terms of your divorce, being prepared to do so can be very helpful in getting your desired outcome from the divorce proceedings.
Divorce advice can range from recommending indifference to a full-on court battle. Fortunately, mediation offers a path that can be amicable and often leaves both parties satisfied. Considering it can take over a year for couples to agree on the terms of the divorce in a traditional case, mediation may be a better path for you.
Dealing With Lack of Preparation
Michael Lodge, NCPM, CRTP: One of the issues that happens in mediation and in real life business negotiations, people come to the meeting unprepared. The following article can help those trying to resolve an issue. Mediators have to work with these issues every day in mediators. The full article link is at the end of the article. www.lodge-co.com
Dealing with Lack of Preparation
Arranging Oral and Written Communication. Ideally, mediators would have good communication with lawyers before convening a mediation. This generally should include both phone or video conversations as well as submission of written statements.
Unfortunately, many lawyers do not provide timely or helpful written materials. To address this problem, mediators can initiate conversations well before they convene the parties. By starting with these conversations, mediators may motivate lawyers to provide better and more timely written materials.
In these conversations, mediators might ask about how they could be most helpful, strengths and weaknesses of the legal case, potential barriers to agreement, issues that are or are not negotiable, and intangible interests that might prompt parties to accept a less favorable financial settlement.
Mediators might ask lawyers to provide information in writing such as the identity of all important individuals or entities involved, nature and amount of damages, key legal issues, disputed and undisputed facts, status of discovery, and prior negotiation efforts, if any.
For parties to be fully prepared, mediators should encourage lawyers to have substantive conversations with their clients before mediation is convened. The conversations should describe the mediation process, issues to be discussed, mediator’s role, and mediation strategy.
Using Multiple Mediation Sessions. Despite mediators’ best efforts to stimulate effective preparation, some lawyers and parties will not be well prepared when they appear at mediation sessions. So mediators might experiment by planning for multiple video mediation sessions.
Mediators can plan for the possibility of two-session mediations, using the first session to prepare for a second session if needed. If parties settle at the first session, they don’t need a second session.
If people need more information and time to be ready to settle than in a single mediation session, mediators could use the first session to help them identify what they would need to be ready. Based on an initial mediation session, the lawyers could plan “homework” before the second session to (1) complete specifically-needed discovery, (2) obtain expert opinions, narrowly-focused arbitration awards, or court rulings on critical legal issues, and/or (3) consult with important individuals or entities relevant to the dispute.
If the parties participate in a second mediation session, it is likely to be more productive, efficient, and consensual than typical mediation sessions. People would not need to repeat all the work from the first session and they could start by focusing on the pivotal issues.
Managing Unreasonable Expectations
Lawyers routinely use a counteroffer negotiation process in which each side starts with extreme positions and makes grudging concessions trying to end up with a favorable settlement. They base their positions on disingenuous claims about the likely court outcome. Everyone knows that these stories are exaggerations at best and fibs at worst. If lawyers took truth serum, they would admit that they don’t fully believe their own arguments.
Unfortunately, mediators don’t have truth serum. But they can cite scientific evidence that many people take huge risks going to trial and often get worse results than the other side’s last settlement offer. When lawyers make unrealistic claims about the likely court outcome, mediators can cite this research and ask how they and their client would feel if they got a worse result at trial than the other side’s best offer in mediation.
Mediators also can ask about arguments that may not convince a judge or jury. At trial, many judges or juries would have questions about particular issues. Why would the judge or jury will see these issues the same way that the lawyers do? How sure are lawyers about their assumptions about what would happen in court? What would might increase their confidence that they would win? What might decrease their confidence?
The counteroffer process often focuses only on expected court decisions without considering the tangible and intangible litigation costs of going to trial. This is problematic for two reasons. First, the parties actually experience the net results after deducting these costs, not just the trial decision. Second, it may be easier to reach agreement by explicitly including calculations of these costs. So mediators might focus on bottom lines, not only the expected court outcome.
Dealing with Strong Emotions
Mediators often struggle when parties and lawyers express strong emotions. Mediators should try to figure out why they are doing so, which are important clues about what’s important to them. Mediators should use good listening techniques to understand, empathize, and acknowledge parties’ feelings and concerns. If parties feel that they are being heard and their concerns are valued, they are less likely to have disturbing emotional outbursts in mediation.
Causes and Consequences of Litigation Stress. Conflict and the litigation process almost always are stressful for parties. Accusations can be extremely painful and undermine people’s self-image. Parties may be asked to provide detailed accounts of traumatic events, which they may have had to recount many times.
Litigation stress can reduce the quality of parties’ decision-making, especially when they are emotionally exhausted over an extended period. As a result, they may act impulsively, deciding to go to trial rather than settle a dispute.
When organizations are parties, their representatives may experience similar and additional stresses. As a result of litigation, their organizations may suffer organizational dysfunction, reputational damage, and lost opportunities.
Parties may feel great pressure to reduce their expectations as they repeatedly make concessions that seem unrelated to the facts and that seem unfair. Their lawyers may have given optimistic assessments at the outset of their case, and their assessments often become more pessimistic and uncertain over time. After an extended struggle, they may grieve the loss of their hopes for a satisfying outcome.
Preventing and Managing Problematic Expressions of Emotion. Obviously, it would be helpful to address parties’ concerns from the outset so that they are less likely to make problematic outbursts such as raising their voices, using inappropriate language, or taking threatening actions. The techniques for doing so are consistent with good mediation techniques generally.
Mediators should start by developing a good rapport with parties, showing that they want to help them deal with their conflict, not just terminate their case.
In initial caucuses, mediators should ask about parties’ experiences, goals, and concerns about their case. Mediators might ask about some or all of the following issues, which can reveal issues that might trigger strong responses in mediation. These include what’s most important to the them, which may not be getting the most favorable financial outcome. Mediators can ask how their goals that might be affected by continued litigation and trial, which might include effects on relationships and reputations, time constraints, and distraction from other activities.
When working with organizational representatives, mediators should ask about how litigation and trial would affect the organization. This might include questions about effects on the organization’s ability to focus on other goals, how much time of its personnel would be diverted to litigation, and possible effects on their reputation and relationships with their stakeholders.
Mediation is hard. Conflict is stressful for everyone. Litigation aggravates stress and can stimulate counter-productive reactions. Lawyers are busy. They may not have the time or inclination to prepare themselves or their clients to mediate productively.
Michael Lodge, NCPM, CRTP: Cities are starting to use more and more mediators to resolve community disputes before police presence is needed. www.lodge-co.com
PASADENA, Calif.—The City of Pasadena will be implementing a City Prosecutor Community Mediation Program. This program is designed to help in the early resolution of community disputes so that these disputes do not rise to the level of police, criminal justice or court involvement. The program will help tackle community disputes that include landlord/tenant disputes, homelessness-related issues, school-related issues, neighbor disputes, consumer/merchant disputes, labor/employment disputes, business disputes, and family/domestic disputes among others.
Effective Tuesday, Dec. 7, the public can go to the City Attorney/City Prosecutor webpage and find a description of this program along with a link that will allow members of the public to document an ongoing dispute. The information will then be relayed to the City Prosecutor’s Office to begin steps toward mediating the dispute. The mediation process in this program is done through a member of the City Prosecutor’s Office who will facilitate communication between the parties to work toward resolving their dispute using specialized communication and negotiation techniques. The City Prosecutor’s Office will help guide the parties toward a mutually agreeable solution and assist in restoring peace and harmony among the parties and help to rebuild relationships within the community.
“The goal is to seek alternative solutions to issues that do not involve the traditional justice system. Each mediation will be tailored to the parties’ specific needs and goals. This program is voluntary, free and confidential, and it’s an important and necessary step in lowering crime, reducing the need for long-term police resources, fostering better relations within the community and bringing about a better quality of life for our residents,” says Chief Assistant City Prosecutor Michael Dowd, who is overseeing the implementation and coordination of this program.
The mediation program was patterned after a similar program in the City of Los Angeles. The decision to start this program in Pasadena was brought about due to a large increase in city disputes concerning property usage, quality of life issues due to homeless activities, eviction disputes, and family and domestic incidents. The mediation program in Pasadena is unique and somewhat different from the one in Los Angeles due to the fact that attorneys from the City Prosecutor’s Office will be the mediators who attempt to fashion out a remedy for the disputes that come into the program. “We believe that utilizing attorneys who are well versed in the law and have a professional connection with what is happening in Pasadena as opposed to mediators who have no connection to the city gives our program some advantages that others lack,” concludes Dowd.
Stay connected to the City of Pasadena! Visit us online at www.cityofpasadena.net; follow us on Twitter at @PasadenaGov, and Instagram and Facebook at @CityOfPasadena; or call the Citizen Service Center Monday through Friday during business hours at (626) 744-7311.
City Prosecutor, mediation
The Business Partner Conflict
Michael Loge, NCPM - If you have ever had a business partner you know there are lines that need to be drawn to work together. Conflict is created when partners are not on the same page and they start to drift away from the other partner to do it as they feel is right, or wrong. The drifting really started at the beginning because neither one sat down together and talked about who was going to do what. At the beginning they think they are on the same game plan but then find out they don't know what their game plan is as partners. And then the conflict begins. www.lodge-co.com
This type of conflict takes are several forms. Mistrust is a big one. Since they stopped talking and planning, they don't see value in the other partner because they begin to mistrust the other persons decision making skills and they feel it is not the right direction. If you don't keep the partner communication up, you will drift apart and as humans your mind begins to build a case as to why the other partner just isn't right for you. Lack of communication starts the process of mistrust.
I had a business mediation consultation this week where two friends decided to start a business and now the one partner wanted out, or to find a way to solve the conflict. Communication had weakened and she felt her friend was not fulfilling her part of the partnership. However, she didn't want to hurt her friendship, they had been friends for years and she didn't want to ruin their friendship over business. The concern of the partner was that the other partner was emotional. Unfortunately, humans are emotional creatures and no matter who you are you must find a way to deal with emotional people, it is a part of life. Bad communication between partners can bring out the emotional side of people and you don't mean to do it because your work style is different from the other. Resolution, sit down with the other partner and ask the question, "how do you feel this business relationship is going and where do you see the future." If you can start from there, then you will know when to bring in a mediator to resolve the details of the conflict and put action items in writing.
I used to have a business partner where we talked about our roles every week as things developed in the business. I was the administration legal guy, and he was the marketing guy to build the client base and business. We knew our roles and I never went over to his side, well because I knew I was very bad at marketing. Never have me sell anything because I will tell you everything you probably don't want to know. I was lucky because he was so good at marketing that he could sell shoes to a lion, he knew how to convince people. We were able to grow our firm to be one of the biggest tax firms in Los Angeles. There were times when issues did come up that we both needed to make a decision on and sometimes we did not see eye to eye. Things did get heated, but in the end, we had to make a decision not based on emotions but on the business itself and what needed to be done.
I love the quote, "In business, when two people always agree, one of them is irrelevant." - William Wrigley. Being partners doesn't mean you are always going to see eye to eye on issues. You will have strong discussions. Both of you have to be relevant to your business and this strong conversation will get you there.
Partnerships always need attention. Communication has got to be consistent. And conflicts must be worked out. Decision have got to be made together on the outcome of the business.
If you like my content, please follow and support me at: www.buymeacoffee.com/michaellodge
Co-parenting Apps for Mediation
When I mediate parenting plans with families, I always suggest that the parents use a parenting app to help them communicate better and coordinate their parenting time with each other. They also help in passing on school and healthcare information to the other parent. The following article was written by Ben Coltran who is a developer of co=parenting app. www.lodge-co.com
For many parents, getting ready for custody mediation is stressful and cumbersome.
A good co-parenting app upends this situation; it helps parents feel focused and organized heading into discussions.
The five best co-parenting apps all let you:
Having children myself, I enjoy helping parents find the option that sets their family up for the most success. So here’s my honest take on the best apps to use before custody mediation, depending on what your situation is.
When you need to document phone calls: Talking Parents
When a premium subscriber calls their co-parent through Talking Parents, the app records and transcribes the conversation.
Printing this transcript is an easy way to inform a mediator — and remind a co-parent — of what parents have already discussed. It can cut down on time spent recapping or rehashing in your sessions.
You can download Talking Parents from major app stores, then upgrade to the premium subscription for $19.99 a month. You can also purchase text message notifications or additional calling minutes.
When you’re drafting a parenting plan: Custody X Change
Custody X Change (which I co-founded) walks you through the steps of creating a parenting plan. It lets you choose from common provisions to include (e.g., Neither parent will unreasonably question the child about the other parent.) and write your own provisions.
When you arrive at mediation with a proposed parenting plan, you save time in negotiations and feel confident in your requests.
Custody X Change also calculates planned parenting time, which can help parents agree on a custody schedule, and it tracks actual parenting time, which is helpful if you return to mediation later.
It’s a web-based app, so you install it directly from the Custody X Change website. Subscriptions start at $97 a year, with monthly payments available.
When you need a discount: Our Family Wizard
Our Family Wizard has been around a long time, so your mediator may be familiar with it. But perhaps an even bigger advantage of Our Family Wizard is that it offers discounts for military parents and parents who prove financial need.
Military parents receive a buy-one-get-one-free deal to use with their co-parent. Parents showing financial need get a one-year subscription at a discount or for free.
Our Family Wizard is in app stores and starts at $99 a year, with more expensive packages also available. You can pay extra to add features.
When your co-parent won’t pay for an account: We Parent
When one parent pays for a We Parent account, the other gets an account for free. This can encourage a hesitant co-parent to use an app.
Getting parents to use an app together is always ideal — it fosters cooperation and can help them agree more quickly when they go to mediation.
Download We Parent from your app store. Subscriptions are $9.99 per month, $99.99 per year or $199.99 for a lifetime.
Keep in mind that We Parent doesn’t have as many features as other co-parenting apps. For instance, it doesn’t include a parenting journal or a dedicated space to share your child’s information (e.g., account numbers, clothing sizes), which the apps above do.
When you’re not ready to commit: Coparently
Coparently is technically a website, not an app. Regardless, it’s the only co-parenting tool on this list currently offering a 30-day free trial. (The others listed here give either a 30-day money-back guarantee or a 14-day trial.)
Coparently’s trial doesn’t even require credit card information, so it’s great for the commitment-wary parent.
If you like what you see during the trial, you can sign up at $9.99 a month or $99 a year.
Although the tool lacks a parenting journal and child-information center (like We Parent does), it lets you track expenses (as do Custody X Change and Our Family Wizard).
BiographyBen Coltrin was 21 years old when he quit his job to create the Custody X Change software, which helps parents track their custody schedules, create parenting plans, keep tabs on their child's expenses, and more.
Michael Lodge, NCPM, CRTP - Today I am just giving my own personal commentary on church and state. Only because it has bothered me to see churches changing "Let's go Branden" in church. Pastors up on the pulpit stage shouting political lines. Politics corrupts everything it touches, even churches. Once you bring politics into any organization it corrupts the good of the organization. Churches are a place of worship, where we go to get away from politics and pray for the politician. Church is a place where we confess our sins and pray for the sinner. Church is a place where we go to forgive and to be forgiven. Politics does nothing but creates a divide between you, good, ethical and God. Politics corrupts everything it touches. www.lodge-co.com
I saw on twitter a mega church in Texas where the whole audience, with the lead of the pastor, were shouting, "Let's go Branden". Now, I don't like Biden, and we know that Branden is referring to Biden, but I am not going to shout it at church and pass the offering plate at the same time. I am not going to shout out a political slogan and then talk about missions. I am not going to push a political agenda and talk about sin at the same time. I am sure that if God was down here now, we would see him at the front of these church doors angry just as he was with the money changers at the doors of the temples. I have no doubt that God is highly displeased with church pastors that allow this type of political corruption to enter their churches.
Pastors were willing to shut down god's house during the lockdowns and people lost their relationship with God. Then they allowed politics into the house of God to corrupt the church's relationship with God. You have to wonder if these pastors are working for God or for the Devil? I am sure the Devil is sitting back and telling himself, “Look, I don't have to do any work, the political churches are doing it themselves, I love corruption," So we have a devil dancing with delight but a God angry at his people and the pastors that lead them. Something is wrong here and it’s called - political corruption.
The pastors who are allowing it to happen in their churches will have to answer to God. However, they should be answering to the people that go to church for their actions. And the people have got to tell their clergy to stop. There is a lot of political healing that has to happen and that takes a lot of prayer and not having pastors endorsing politics in their churches. There are a lot of people that need feeding in their church communities, put the politics aside and help their communities. If you want to make change for the better, you work and help your communities.
And that is the end of my rant this morning.
There Are All Kinds of Family Mediation
Michael Lodge, NCPM, CRTP - I love mediation. The reason is that it is a helping source for people who are trying to resolve issues. Family mediation comes in all sorts of different forms. Grandparents trying to reconcile with their children so they can see their grandchildren. Parents having an issue with teenage children. Families going through a separation or divorce. Moms and Dads that need to create a parenting plan for the children. This morning I received a request for mediation that I could tell came from the heart of this individual and wanted to get the help of a mediator, for which I commend him. www.lodge-co.com
"I am looking for a mediator to help my wife and I have a conversation. We have not spoken in a week because of a temporary restraining order that she ordered. I feel that a mediator will be safer for me, provide me more of an opportunity to speak, and hopefully end with a better outcome."
This type of request I get often because something happened that the person wants to be resolved through communication. In the heat of an anger there are words exchanged and actions are taken that make it very hard to clean up the situation, the court gets involved, and then the communication ends. When that something happens and sides feel threatened the court can step in and get involved, set the rules on how they can communicate or cannot communicate, or can't be around each other at all. Both sides are sitting there building up steam. They want to be heard. They need someone to vent to and that is when a mediator steps in and helps them refocus the communication of what needs to be addressed. By the way this is not just limited to married people, it involves those who are living together, have children together, have built a life together, and things get out of hand.
A mediator is brought in so that both sides can communicate with each other through a third party that keeps the communication civilized. They can speak to each other through a mediator who takes the message from one person to the other person, making it all confidential. A mediator is able to listen and cool each side down. A mediator is not a family therapist but he or she is that person that can refocus the heated energy to the very issues that need to be resolved and set up a communication process that limits the anger and enhance the communication process. The mediator can get the individuals to agree on terms of how to go forward and create an agreement on what needs to be done. Mediation is not therapy, but it does help resolve issues to move forward on.
Even before things get out of control, and you see a problem, set up a mediation session and express what you see the problems are so they can get resolved before the courts get involved. Be proactive in trying to resolve issues. If you need to get marital or relationship counseling from a licensed therapists in that area - do it. You have to admit something is wrong in order to resolve the issues, and there is nothing wrong with it. In fact, it is a trait of leadership and love if you reach out to professionals that can help you. Mediators are a good source to focus on the issues, weed out all of the emotional stuff, and get to the heart of the matter.
Remember, mediation is a confidential method to resolve issues. Try it, you will like it. If you need a mediator, contact my office. You can send me an email at firstname.lastname@example.org or book a 30 minute free consultation by going to: https://app.squarespacescheduling.com/schedule.php?owner=24589076
Learning To Ask Questions
Michael Lodge, NCPM, CRTP - As a mediator I am always studying the art of questions. Yes, it is an art because a question can lead people in the right direction in making a decision or in negotiations. The question that a mediator or negotiator asks can guide a tense situation into a negotiated settlement where parties can walk away from with a result. Asking questions is vital also in running a business, sales, leadership, and other roles you may be playing where you need to get to results. www.lodge-co.com
It has frequently been said that negotiation is not an act of war, but a journey of discovery. A journey aimed at getting to the position where all the parties around the table agree on a particular proposition or stance, because the option has been introduced and explored in such a way that it makes sense to everyone present.
That important process – getting to the “that’s right” moment – involves, above all else, that the party leading the negotiation (the mediator in a facilitated mediation, for example) must continually pose the questions which shed light on the mindset, interests and agenda of the disputant parties.
So let’s look at the vital act of asking questions that assist the parties, as they travel the rocky road towards consensus.
Firstly, the skilled negotiator realizes the value of forming a close alliance with those trusted questioning mechanisms called interrogatives – the what, why, when, how and who. Using interrogatives frequently, to gain understanding and probe into the inner-core aspects which make that negotiating party tick, is a golden secret used by all the great negotiators. Interrogatives are valuable because they are so open-ended, so innocent, so very conducive towards getting a party to divulge details, great and small, which are going to contribute towards understanding, progress, settlement.
Remember, too, that these questions should be posed in the most gentle and understated tone of voice. Not the in-your-face confrontational manner of the trial lawyer, mercilessly dismantling a hostile witness. A negotiator asks questions in a manner, and tone, which indicates that the questions are without malice, aimed at gaining understanding and insight into what the party at the negotiating table is actually trying to defend, promote or achieve.
The second skill which the negotiator has, when using questions, is that of raising questions to demonstrate empathy, and a desire to build bridges. In negotiations, empathy does not equate to bunny-hugging, endlessly sentimental agree-at-all-costs type of approach. What it does, however, require is for the questioner to demonstrate that he is willing, and trying really hard, to understand what it is that makes the particular clock tick. Useful phrases to be used in this context include “let me understand …”, “would it be completely out of the question to suggest that …”, “this is the scenario it seems we’re facing, but help me fill in the gaps that I’m missing out on”. That kind of question. Questions which don’t judge, but which indicate a willingness to acquire an understanding, and to use that understanding to resolve whatever fire-breathing dragons are marching back and forth, on the negotiation table.
There’s the equally useful questioning techniques of reversing, aimed at making the opponent see things from your point of view (or, if you’re a mediator, assisting each party to better understand the stance of the other party). Reversing requires the party tabling a proposal or adopting a position to step back and consider, for a moment, how it would be perceived by the other side. It’s useful because the golden rule of negotiation is, after all, that you can only sell a proposition if you’re able to place yourself in the shoes of the person or entity to whom you’re pitching the sale. So, a typical lead-in to a reversing question is, “how do you expect us to achieve that?”, or “what are the advantages your proposal holds for the other side?”.
Questions. They are your best friends. Use them frequently.
Written by: Andre Oosthuizen, on Mediate.com
Michael Lodge, NCPM, CRTP - Several times I have had to tell clients when doing separation and divorce cases that I am not their therapist or counselor. I do listen to people and their problems but my role is to identify the issues that need to be addressed and get the two parties to focus just on finding option and resolutions to problems. And of course, everything is done confidentially. There are differences between the profession and sometimes these professions work together, if needed. Since I am a business mediator I do a lot of counseling and advisory work with businesses to work on struggles within their companies. Mediation is what I am certified in and business counseling and coaching is what I have been doing for years in private practice. So let's go through the differences in the professions that are so helpful in resolving issues. www.lodge-co.com
What is the difference between counseling, conflict coaching, conflict consulting, and mediation? How do you figure out the most appropriate or the best option for you? Are they mutually exclusive or do you need more than one? Here is a look at what you can expect from each one.
A counselor or therapist can help a patient manage personal daily struggles with a focus on what event or experience in the past has influenced the present feeling, thinking, or behavior. Therapists are trained and equipped to diagnose and treat emotional wounds. A skilled therapist can help a patient figure out where the behavior or thinking originated and then how to correct it. They help guide the patient to understand themselves better, and to work on behavioral or thinking changes to have less angst in life. Therapists may ask questions like “where or when in your childhood did you experience those feelings before?” No topic is out of bounds for a therapist. There are many reasons therapy makes sense, for example, when a person needs help with a painful experience, is having reoccurring thoughts, is feeling a loss of control or sense of isolation, or a lost sense of joy just to name a few (this is not meant to be an exhaustive list). Therapy can take anywhere from a few months to a few years and in some cases may be covered by medical insurance. (Noble, 241)
A conflict consultant can provide advice about conflict in your organization, whether your organization is a large corporation, a non-profit, a board of directors, a church, or a family. Conflict Consultants interview various persons from all levels and groups in the organization to find out what is happening. The consultants analyze the information provided in the interviews and through their experience and knowledge they provide insights about the state of conflict and relational dynamics in the organization by way of a written report. The consultant will suggest remedies which can include training and/or coaching for specific individuals, training and/or coaching for teams, suggested readings with book groups for discussion, mediation between specific team members, or dialogues between team members, between teams, or between departments. Conflict consultants may ask questions like “tell me how decisions are made in your department” and “what happens when there is a disagreement?” A conflict consultant makes sense when deadlines are being missed, there is frequent episodes of drama, there are personality conflicts, or things just aren’t humming along, and you don’t know why. A conflict consulting report usually takes between 2-8 weeks depending on the size of the organization.
A conflict coach guides a client through a conflict coaching process the purpose of which is to initiate insights into and realizations about their conflict response during conflict events. The process is structured and goal-oriented and usually focusses on a specific conflict. The conflict coach will dive deep into that particular event to reveal underlying values and identities of those involved. The conflict coach may ask questions such as “what about that interaction was difficult for you?” (Nobel 62) or “what did you observe about what was happening in your body at that time?” (Nobel 67). Questions like this may help reveal information about what causes your reaction or their reaction during conflict. Coaches do not give advice like consultants, nor do they provide therapy as counselors. Coaches ask very intentional questions related to a conflict to help a client gain insight into their conflict response and to guide the client to practice and refine an option for dealing with the situation that works best for them (Noble, 240). It makes sense to hire a conflict coach when you want to improve your response to conflict, figure out what is happening in a specific conflict, prepare for a difficult conversation you need to have, or just want to understand yourself better. In many cases where a conflict coach is used, the other person may not be aware that there is a conflict. Conflict coaching usually takes about 8 sessions of 1-2 hours per session to deconstruct a specific conflict form a solution to try.
Mediation is a process in which two or more people agree to bring in a neutral party, a mediator, to help them resolve a dispute. The process is based on fairness and is focused on getting to an agreement that all parties are willing to sign. Mediation’s benefits are usually discussed in terms of how it compares to litigation. It generally takes less time, is more cost effective, is less damaging to relationships and it allows the two people involved to make the decision for the resolution which leads to everybody getting something. Whereas litigation is expensive, can take years, damages the relationship of those involved, and someone outside the dispute, the judge, gets to decide the outcome where there is usually a winner and a loser. Mediation is a good way to settle disputes where the parties maintain control of the outcome. It is voluntary and protected by confidentiality in the evidence code of many states, meaning the decision can stay private and what is said in mediation cannot be used as evidence in a trial. It makes sense to mediate when there is a conflict between two or more people who know about and agree on the what the conflict is about but cannot resolve the conflict on their own. Mediation can be very variable in time depending on the complexity of the conflict and the number of people involved. Each session can be limited to 2 hours or can be scheduled for all day.
Suppose you have a board of directors of a non-profit whose board members are not getting along. Barb and John have had out right shouting matches where John commented on her actions being ones that “could be grounds for termination”. Barb has said she feels threatened and is considering filing a hostile work environment lawsuit. Other members agree with John in his discernment about Barb’s shortcomings but do not think he should have yelled at her and are not considering firing her. How should this situation be rectified? The president of the board or another member of the board could contact a consultant, a counselor, a conflict coach and/or a mediator.
None of these options are mutually exclusive in that you can be seeing a therapist, a coach, a consultant, and a mediator at the same time, however, the practitioners should not be the same person. That is, each provider should only be wearing the one hat at a time. For example, a mediator cannot act as a coach for one of the parties because that would compromise neutrality. If both parties want coaching from the mediator, neutrality is less compromised, but still is not ideal. Many practitioners have a roster of professionals they can recommend to their clients if another service is needed. In fact, some mediators recommend coaching to parties to help a client maximize their behavior during the mediation for the best result. A coach cannot be a consultant as that would require the dispensing of advice. A consultant can become the coach or mediator after the report is delivered. A therapists can assist on whatever topic their client needs. So, a therapist can help a client prepare for a difficult conversation or other outcomes that a coach could also do, but a coach (even if trained and licensed as a therapist) should not be providing therapy while acting as a coach, they are different roles.
Each of these types of providers have varied costs and fees based on their experience and expertise, so comparison is difficult. I suggest you do your research. Ask friends and family for their recommendations, look at their websites, take advantage of their free or reduced-price consultation to see if you feel comfortable with them and can work with them. Lastly, Use these resources. There are many professionals out there to help with conflict. Don’t lose sleep and due to stress. Call one or more of these professionals to assist you in resolving the issues and gain peace of mind.
Noble, C. (2012). Conflict management coaching: the Cinergy model. Cinergy Coaching.
Written by: Janet Chance for Mediate.com
Michael Lodge, NCPM, CRTP - This past week I got a cold and was unable to do a daily blog. My fault. It got down to 32 degrees in the house and I had not turned the heat on so I got a chill. So when the body gets chilled the mean old cold gets you sick, and that is what happened to me. As of today I am all fine. I just got a head cold and I rested for a couple of days. All gone.
However, when people found out I was sick the question they asked - are you sure it isn't Covid? Listen, we all can still get a cold and not have it be Covid. The other viruses out there are still alive and spreading, just like Covid does. We all get colds. We call get the flue. And we all can still get Covid, even if you are vaccinated. Not everything is Covid.
It has been years since I have had a cold. I treated this cold like I have always done. Plenty of rest and lots of water and lemons. I took no medication, I did everything the best way that has worked for me in the past. We all know our bodies and how we respond to various health issues. I know the symptoms of Covid and knew I had none of them for this cold.
Colds are going to be out there during this season of cool weather changes we are having. But not everything is going to be Covid, the flue and cold are still out there and we can get them. Let's just keep living, life has got to become semi normal each day. No vaccine is the cure all for a virus.
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Michael Lodge is a Nationally Certified Professional Mediator specializing in business disputes, as well as family conflicts. He has written three books and hosts an international podcast on IHeartRadio and other podcast media stations.